States Battle EPA over Clean Air Designations

Published May 1, 2005

The U.S. Environmental Protection Agency (EPA) has erroneously designated several regions across the country as out of compliance with federal standards for soot and particulate matter, according to government officials in several states. While some of their objections have convinced EPA to reconsider nonattainment designations, others are likely to be decided in federal court.

New, more stringent federal standards regarding airborne particulate matter (PM) and soot are being implemented across the country. In December 2004 EPA provided notice that 225 counties in 20 states had failed to meet the new standards. Those counties must submit to EPA a compliance implementation plan by 2008 and meet the new standards by 2010. Counties that fail to meet the mandates will lose federal transportation money.

Implementation Costly

The compliance implementation mandates are expected to take a heavy economic toll on regions currently not in compliance with the new standards. Industry is unlikely to establish operations in a region where new and costly soot abatement programs are necessary, especially when other regions of the state and country do not impose such costly mandates.

“When you’re out there trying to get businesses and industry to come to your community, and to have a black cloud hanging unfairly, that’s a big hit,” explained Vince Griffin, vice president of environmental and energy policy for the Indiana Chamber of Commerce, in the March 8 Indianapolis Star. “A lot of counties will not even get up to bat.”

Accuracy Questioned

Local officials frequently assert EPA’s reading stations are placed in unfair locations unrepresentative of regional air quality. Officials also argue EPA misidentifies the offending region by failing to hold upwind counties responsible for particulate matter that drifts into other counties and regions. Moreover, “Some (pollution) forms after a chemical reaction, so you could see emissions from one county impacting another county,” EPA air expert Jim Mooney told the Star.

Many state and local government officials have battled EPA’s December 2004 nonattainment designations. EPA reconsidered some of those designations before April 2005, when the new standards took effect, while other designations are poised to be decided in federal court.

Indiana Obtains Partial Relief

Indiana Attorney General Steve Carter (R) objected to EPA’s determination that 14 Indiana counties have completely failed to meet the new standards, and that five other Indiana counties are in partial noncompliance, having failed to attain some standards. On March 5, 2005, Carter filed suit in the U.S. Court of Appeals arguing that all but three of the designated counties are in compliance with the new standards.

Carter alleges, for example, that several counties in southwest Indiana were unfairly designated as out of compliance because a power plant in a bordering Kentucky county is sending soot across the Ohio River.

In response to Carter’s objections, EPA announced on April 5 that it would no longer consider Elkhart and St. Joseph counties in Northern Indiana as out of compliance with the new standard. EPA announced its other nonattainment designations for Indiana would stand.

Laura Pippenger, spokeswoman for the Indiana Department of Environmental Management, praised EPA for reconsidering the Elkhart and St. Joseph county designations but did not indicate whether the state would abandon its lawsuit regarding the other counties. “We wish we could agree on the other counties, as well,” Pippenger told the April 7 Louisville Courier-Journal.

Michigan Counties Complain

In Michigan, there is no such uncertainty regarding a legal challenge to EPA’s nonattainment designations.

Oakland County had sent EPA a letter objecting to the department’s nonattainment designation for seven southeastern Michigan counties. With the support of state officials, Oakland County also filed a suit in federal appellate court regarding the designations. When EPA on April 5 reiterated its nonattainment designation for the southeastern Michigan region, the die was cast for ongoing legal challenges.

“The outlying counties of Oakland, Livingston, Macomb, St. Clair, [and] Washtenaw as well as Monroe County, are not violating the standard and should be designated attainment,” Michigan Department of Environmental Quality Director Steven Chester asserted in a February 2005 letter to the agency.

“We’re being lumped in because we’re next to Wayne County,” Oakland County Executive L. Brooks Patterson told the March 8 Detroit News. “Oakland County is not out of attainment. This is government at its worst. This designation will only make it harder for businesses to locate here.”

EPA Rebuffs Complaints

According to the March 8 Detroit News, EPA defended its decision, noting that while counties like Oakland may lack the traditional smokestack polluters, they still have automobiles, small industry, and other sources of pollution that contribute to the regional problem.

“When we looked at all the data, the emissions, the meteorology, and the population, we just didn’t think it was as localized as some of the local officials did,” John Mooney, an air quality expert in EPA’s Chicago office, told the News.

The Michigan designations represent another economic blow to a region that is already reeling. Michigan has the nation’s highest unemployment rate, and new mandates to achieve particulate matter compliance “will cost businesses money and make the area less desirable to potential employers,” Patrick Anderson, a consultant with the Anderson Economic Group, told the News. “We don’t need another burden, especially one that’s sloppily placed like this one.”

South Carolina Joins Fray

South Carolina officials similarly plan to seek redress in court after EPA failed to retract its “unclassifiable” (and therefore, nonattainment) designations for Greenville, Anderson, and Spartanburg counties.

According to the March 8 Greenville News, two of the three counties filed a federal suit alleging that placement of a particulate matter monitor distorts the region’s air quality status.

“If one of four Upstate monitors fails to meet air quality standards, all three counties could lose federal money for highways and new companies could be forced to install expensive pollution-control equipment,” explained the News. “Three of the monitors show the air to be fine, but one, in downtown Greenville behind the County Health building, has occasionally exceeded standards in cold weather, according to the petition filed by the counties.”

The counties blame disparate readings from the downtown monitor on an old oil heater in the County Health building rather than ambient air quality. Similarly, argues the county, cars in the County Health building parking lot and a nearby wood-burning furnace further skew the monitoring station’s air quality readings.

James Hoare ([email protected]) is managing attorney at the Syracuse, New York office of McGivney, Kluger & Gannon.